Whanganui River and Te Urewera Treaty Settlements: Innovative developments for the practice of rangatiratanga in resource management By Stephanie Warren A thesis submitted to Victoria University of Wellington in fulfilment of the requirements for the degree of Master of New Zealand Studies. Victoria University of Wellington 2016 Abstract This thesis concerns the recent innovative developments in the Whanganui River and Te Urewera Treaty settlements of 2014. The Whanganui River has become the first specific environmental resource to receive the rights and status of a legal person. Te Urewera has been removed from the 1980 National Parks Act to also become its own legal person. Both legal personalities will be co-managed by boards of equal Crown and iwi members. The Te Urewera Board will, however, be rearranged in 2018 to have a Tūhoe majority, another first for Treaty of Waitangi settlements. These new features are considered particularly innovative in this thesis because of the context of Crown indivisible sovereignty and its unequal share of power in negotiating settlements. This thesis considers the ability of these settlements to provide space for iwi to practice rangatiratanga in relation to the resource that is central to their history and identity. If rangatiratanga is considered in this context to be the ability of iwi to practice self-determination and autonomy, then these settlements go further than previously seen because the application of the legal personality and the way it is co-managed is based for the most part on the worldview of the iwi. However, this worldview will continue to be practiced within the wider context of the English political and legal system. Because the improvement of the health and wellbeing of the Whanganui River and Te Urewera will be based on tikanga and mātauranga, Whanganui iwi and Tūhoe have been provided with more space than the Crown has previously conceded to practice rangatiratanga over these resources. i Acknowledgements Many thanks are due to my two supervisors; Richard Hill and Maria Bargh. The strength of this thesis is in the way it balances between the realistic understanding of the Crown as the indivisible sovereign and the dissatisfaction with this situation and the expectation that more is possible from the Treaty settlement process. This thin line that I have walked on for the last year is between the perspective of Richard, a pragmatic historian and former Waitangi Tribunal member, and Maria, a Te Kawa a Māui academic who does not take Crown sovereignty for granted. I am grateful to both of them for not letting me fall off either side of this narrow line. I also thank my partner, Jake Leckey, and my parents, Alison and Peter Warren. Without their support, in every sense of the word, it would not have been possible for me to enrol, let alone complete, my Masters. Special thanks again to Jake and Alison for proofreading my final draft and finding the mistakes that I had long since stopped being able to see. I am greatly appreciative of the Stout Research Centre for New Zealand Studies for providing such an excellent environment for me to complete my Masters. Thanks to Debbie Levy and Lydia Wevers for your assistance along the way, particularly to Lydia for your thorough proofreading and many helpful suggestions for my thesis. To all of my friends and family who have been so supportive, willing to be lectured, and have shouted me food and drinks as I haven't earned any money for two years, thank you all so very much. ii Contents Abstract...................................................................................................................................... i Acknowledgements ................................................................................................................ ii Contents ................................................................................................................................... iii Introduction ............................................................................................................................. 1 Chapter One: Background ................................................................................................... 12 Chapter Two: Whanganui River Treaty Settlement......................................................... 30 Chapter Three: Te Urewera Treaty Settlement ................................................................. 58 Chapter Four: Analysis ........................................................................................................ 82 Conclusion ........................................................................................................................... 104 Glossary ................................................................................................................................ 113 Bibliography ........................................................................................................................ 116 iii iv Introduction In 1975, following more than a decade of increasing Māori activism about the Crown and its disregard of the Treaty of Waitangi, the Treaty of Waitangi Act brought about an enquiry process for modern breaches of the Treaty. The Act established the Waitangi Tribunal and gave it non-binding power to make recommendations to the Crown based on the findings of Waitangi Tribunal reports. In 1985, an amendment to the Act meant that the Tribunal could hear claims that dated back to the signing of the Treaty in 1840. In the late 1980s, there was a large influx of historical claims regarding Crown breaches of the Treaty. The Office of Treaty Settlements was first implemented as the Treaty of Waitangi Policy Unit in 1988, to deal with the negotiation, settlement and legislation of the huge backlog of claims. While the rate of settlement has increased dramatically in recent years, it can still take many years for an iwi to reach their final settlement as they make their way through what can be a very difficult, time-consuming and expensive process. Treaty settlements have been covered by relatively few books, considering the significance of Treaty settlements for Crown-iwi relationships in the last forty years. Much of the written material on Treaty settlements relates to specific claims and settlements and is written by an iwi member or another individual which specialises in the area, such as Whatiwhatihoe: the Waikato raupatu claim by David McCan (McCan 2001). There are other theses which critically engage with specific settlements. A recent and noteworthy addition to the field is the Ph.D. thesis by Martin Fisher called Balancing rangatiratanga and kāwanatanga: Waikato-Tainui and Ngāi Tahu's Treaty settlement negotiations with the Crown (Fisher 2015). Many of the texts relating to the settlement process are produced by the Office of Treaty Settlements and explain the intent and principles of the settlements but do not engage with the difficult issues in the process. One of their most informative productions is Healing the past, building a 1 future: a guide to Treaty of Waitangi claims and negotiations with the Crown (Office of Treaty Settlements 2004). A notable addition to the critical analysis of the Treaty settlement process, in general, is the text, Treaty of Waitangi Settlements, edited by Nicola R Wheen and Janine Hayward (Hayward and Wheen 2012). Treaty of Waitangi Settlements draws together scholarship that critically engages with the complex issues with the settlement process. It is a necessary and helpful addition to the scholarship. Such a critical approach to the Crown's unequal power in the creation of settlements and the implications of this for iwi is the starting point of this thesis. Whanganui River and Te Urewera While the claim to the Waitangi Tribunal for the Whanganui River was brought on behalf of Te Atihaunui-a-Pāpārangi, 'the parent name for the river hapu', this thesis will refer to the claimant group as "Whanganui iwi" (Waitangi Tribunal 1999:2). Whanganui iwi is the term used in the Deed of Settlement and is defined as the group whose members descend (by birth, adoption or whāngai) from Ruatipua, Paerangi and/or Haunui-ā-Pāpārangi (Whanganui River Māori Trust Board 2014: 21). Whanganui iwi have been demanding their interests in the Whanganui River be recognised by the Crown since the 1870s (Young 1998: 113). The Crown's control over the river degraded its ecology without consultation with Whanganui iwi and often against their expressed opposition. The ecological damage was caused by gravel extraction, the introduction of foreign marine species, the destruction of pā tuna by steamboats and the removal of rapids, and the diversion of water by the Tongariro Power Division. The Coal-mines Amendment Act 1903 vested the bed of navigable rivers in the Crown though this assertion of Crown ownership was carried out without the agreement of Whanganui iwi, as was typical of this period of New Zealand history. 2 Whanganui iwi began to negotiate the resolution of their claim to the Whanganui River in 1988. Following years of inconclusive negotiations with the Crown, Whanganui iwi brought their claim to the Waitangi Tribunal in 1994. The Tribunal report was completed in 1999 and the parties have since negotiated their Deed of Settlement: Ruruku Whakatupua. It was signed in 2014 and included a landmark provision for the Whanganui River to be vested as a legal personality, with a two-member co-management board. One member will be appointed by Whanganui iwi and the other appointed by the